Natural disasters like the kind we recently have witnessed in the flood-ravaged areas of the southern United States raise a host of issues for employers.  Some wonder whether they are required to pay their employees during suspended operations; others are unsure whether and to what extent health benefits should be offered.  But what about an employer’s obligation to provide a leave of absence to employees during a natural disaster under laws such as the Family and Medical Leave Act?  We cover below some of the more common FMLA-related issues employers face after natural disasters, such as a tornado, hurricane or flood, hit.

An Employee’s Right to Take FMLA Leave after a Natural Disaster

The FMLA does not, in itself, require employers to give employees time off to attend to personal matters arising out of a natural disaster, such as cleaning a flood-damaged basement, salvaging belongings, or searching for missing relatives.  (See our recent post where a court dismissed an employee’s FMLA claim where the employee sought leave to clean up his mom’s basement after a flood.)  However, employers clearly have the right to voluntarily provide leave in these situations pursuant to their personnel policies.

That being said, an employee would qualify for FMLA leave when, as a result of a natural disaster, the employee suffers a physical or mental illness or injury that meets the definition of a “serious health condition” and renders them unable to perform their job, or the employee is required to care for a spouse, child or parent with a serious health condition who is affected by the natural disaster.  Here are some examples:

  • A natural disaster causes an employee’s chronic condition (such as stress, anxiety or soaring blood pressure) to flare up, rendering them unable to perform their job.  Where the medical certification supports the need for leave as a result of the natural disaster, FMLA leave is in play.
  • An employee is required to care for a family member with a serious health condition for a reason connected with the natural disaster.  Take, for instance, an employee’s parent who suffers from diabetes.  If the event took out power to the parent’s home, the employee may need to help administer the parent’s medication, which must be refrigerated.  Similarly, the employee may need to assist a family member when his/her medical equipment is not operating because of a power outage.

Could a Natural Disaster Cause a Serious Health Condition That Implicates the FMLA?

In addition to those reasons above, employees who are physically or emotionally injured as the result of a natural disaster also may be entitled to FMLA leave.  Moreover, their impairments may be significant enough to rise to the level of disability, resulting in potential employer obligations under the Americans the Disabilities Act (ADA).  These medical conditions may arise several weeks and months after the natural disaster hits.  Thus, employers should be vigilant in watching for signs of an employee who is unusually scarred by a natural disaster.

Take, for example, post-traumatic stress disorder.  A condition often associated with military servicemembers returning from active duty, PTSD also can arise out of a natural disaster.  In this situation, an employer would not only be required to consider its FMLA obligations for such an employee, but its ADA obligations as well.  Here, the employer may need to provide FMLA leave if the employee is unable to perform their job duties as a result of a serious health condition.  It also may be required to provide reasonable accommodations for the employee, such as the option to telecommute or work from home, or provide leave to attend counseling or receive treatment for the medical condition.

Insights for Employers

Our prayers go out to our fellow Americans affected by the recent spring tornadoes and flooding.  As the media already has reported, employers in the south continue to do their part to assist their employees with personal tragedies arising out of this life-changing event.

In the time ahead, employers must familiarize themselves with employment issues arising out of the natural disaster that may impact their business operations and implement appropriate procedures that will adequately protect themselves against liability in the future.  Where an employee is requesting leave as a result of the natural disaster, employers should obtain as much information as possible from the employee to determine whether the absence qualifies as protected leave.  Where there is doubt, employers should provide the requisite FMLA paperwork and allow the employee to provide the necessary information to support FMLA leave.

Also, employers should ensure that medical certification is sufficient to cover the absence at issue.  Where more information is required, employers must follow up with an employee to obtain the information necessary to designate the absence as FMLA leave.  Moreover, when an employer has reason to doubt the reasons for FMLA leave, they have the right to seek a second opinion to ensure FMLA leave is appropriate.

newborn baseball.jpgHere’s a shout out to all the dads out there who have a leg up on major league baseball players in at least one area — paternity leave. 

Last week, National Public Radio reported that Texas Rangers pitcher Colby Lewis became Major League Baseball’s first player to exercise a new right under the parties’ collective bargaining agreement — the opportunity to take paternity leave in conjunction with the birth of his child.  Under the terms of the CBA, MLB players now are allowed to take 24 to 72 hours off due to the birth of their children. (NBC Sports reported shortly afterward that another player, Washington Nationals’ shortstop Ian Desmond, also was preparing himself to take on the roll of “coach” at the side of his wife, who was about to give birth to their first child.)

Not too much to ask for a little bonding time between father and child, don’t you think?  Sadly for Lewis, some of the Texas Rangers faithful believe that the 24 to 72 hours provided to bond with your very own newborn is just a tad too much for a baseball pitcher who gets paid millions to play a game he loves.  Cried Richie Whitt, a Dallas Observer baseball beat writer: 

Baseball players are paid millions to play baseball. If that means ‘scheduling’ births so they occur in the off-season, then so be it. Of the 365 days in a year, starting pitchers “work” maybe 40 of them, counting spring training and playoffs.

If it was a first child, maybe. But a second child causing a player to miss a game? Ludicrous.

Even Rangers president Nolan Ryan acknowledged that he was trying to acclimate himself to the new rule, commenting on ESPN sports radio that a leave of absence to be present for the birth of a child was uncommon in his day:

In those days they never allowed you to go home for a child to be born. It’s just something you heard about if it happened during the season.  ‘By the way, you have a new son or daughter,’ a laughing Ryan said, referring to what your wife would say to you over the phone.

Others, such as NBC Sports’ Craig Calcaterra, came to Lewis’ aid, suggesting (appropriately) that the short time away for Lewis and other MLB dads to bond with their newborn child clearly was a “good” reason to be away.

A mere 24 to 72 hours to bond with my kid?  Wow.  Just when I think I have it rough as an attorney in private practice, I realize I must be living on easy street when compared to guys like Colby Lewis.  Ummmm…Right?

catpaw.jpgLast month, the Supreme Court ruled in Staub v. Proctor Hospital(pdf) that an employer in an employment discrimination case can be liable for the discriminatory animus of an employee who influences, but does not make, the ultimate employment decision at issue.  Known as the “cat’s paw” theory, it already is having an impact on claims brought under the Family and Medical Leave Act. 

As the folks at the Ohio Employer’s Law Blog point out, just days after the Staub decision, the reach of the Supreme Court’s ruling already has impacted an FMLA case.  In Blount v. Ohio Bell Telephone Co., the employer maintained a “performance management system” that disciplined employees for failing to meet certain goals.  Managers were given wide discretion to decide whether to issue discipline when an employee did not meet set goals.  In Blount, two employees who had recently taken FMLA leave sued after they were terminated for failing to meet certain goals under the performance management system.  In short, the employees claimed they had been treated differently than other employees who failed to meet the same goals but were not terminated.

In defending the claim, the telephone company claimed that the decision to terminate the employees came from top-level management, not the employee’s direct supervisors.  Thus, the employer claimed that any alleged biased from the lower-level managers had no bearing on the ultimate termination decision.  The Court disagreed:

Even if the decision to punish and terminate resided higher in the supervisory chain, . . . the animus of the Center Sales Managers can be inferred upwards where it had the effect of coloring the various adverse employment actions in this suit. See Staub (discriminatory animus can be inferred upwards where the employee who makes the ultimate decision to punish does so in reliance upon assessments or reports prepared by supervisors who possess such animus).

As a result, the Court allowed the employees’ FMLA retaliation claims to be considered by a jury.

Insights for Employers

The Blount decision serves as a reminder to employers that employee allegations of illegal bias by managers should be independently investigated, regardless of when and at what point in the discipline process the allegations are raised.  Clearly, a senior-level officer generally can and should rely on the recommendations of lower-level managers when deciding whether to issue discipline or terminate an employee.

However, an employer must tread carefully where there are claims of bias against a manager recommending discipline.  Might the result have been different had the telephone company investigated the claims of bias before terminating the employees?  In doing so, the telephone company could have tested the accuracy of the claims and determined whether the employees’ terminations were independently justified and not tainted by any bias.  Such an investigation also would have made for a better record for the company to defend in litigation. 

The decision also is a gentle reminder that training of managers and supervisors is vitally important to combat litigation.  A dollar spent now on training will save a whole lot more later.  Be sure to include some space in your 2011 budget for training.

baseball field

In this opening weekend of major league baseball, hope springs eternal for every baseball fan.  In honor of my beloved Chicago White Sox, I offer an FMLA lineup card below that from top to bottom will help employers stay atop the pennant race throughout the year.

[First, feel free to play the National Anthem if you so desire…]

From the Leadoff Hitter to the end of the lineup, here are my FMLA All Stars:

Continue Reading Play Ball! An FMLA Lineup That Keeps You in the Pennant Race

Yesterday, the Equal Employment Opportunity Commission (EEOC) released the much-anticipated final regulations (pdf) for the ADA Amendments Act of 2008. The EEOC will publish the regulations in the Federal Register today, and they will become effective in 60 days, on May 24, 2011. The EEOC has issued a press release highlighting the release of the new regulations.  It also has drafted a “Questions and Answers” guidance sheet and a fact sheet to better aid employers in understanding the final regulations.

Based on our initial reading, the final regulations largely track the statutory changes made by Congress in 2008 and much of what the EEOC initially proposed for comment in September 2009. Notably, the final regulations:

  • Emphasize that the definition of “disability” should be interpreted broadly;
  • Caution that the question of whether an individual is “substantially limited” in a major life activity “should not demand extensive analysis” in order to meet the standard necessary to establish a disability;
  • Expand the definition of “major life activities” through two non-exhaustive lists:

– the first focuses on activities, some of which the EEOC already has recognized (e.g., walking) and some of which are new to these regulations (e.g., sleeping, concentrating, thinking, reading); and

– the other focuses on major bodily functions (e.g., the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions);

  • Require that impairments be evaluated in their “unmitigated” state to determine whether the individual is disabled (the exceptions being contact lenses and ordinary eyeglasses);
  • Clarify that an impairment that is episodic or in remission is considered a disability if the impairment would substantially limit a major life activity when active; and
  • Make it easier for individuals to establish coverage under the “regarded as” prong of the definition of “disability.”

Clearly, one of the aims of the new regulations is to take the focus off determining whether an individual is disabled and place it on necessary accommodations for a disabled individual.  Indeed, the regulations now state that the question of whether an individual is substantially limited in a major life activity “should not demand extensive analysis.”

Perhaps the two most significant changes in the final regulations are the EEOC’s decision to specifically list medical conditions that will “virtually always” constitute impairments covered by the ADA, and its rejection of any minimum duration of time before an individual is considered disabled. 

Per Se Disability?

Acknowledging that the determination of disability requires an “individualized assessment,” the EEOC lists conditions that will “virtually always” meet the definition of disability.  These include autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, and a variety of serious mental disorders.  Given their inherent nature, states the EEOC, these impairments will: 1) virtually always impose a substantial limitation on a major life activity; and 2) require an individualized assessment that is “particularly simple and straightforward.”  The EEOC declined to provide a list of per se disabilities, but as evidenced by the list above, it came close.

Short-term Impairments Could Constitute a Disability?

Although the proposed regulations included a provision stating that short-term impairments, such as a broken bone that is expected to heal fully, do not constitute disabilities, that language was removed from the final rules. Instead, the regulations specifically reject any minimum duration, and the EEOC points out that the duration of an impairment “is only one factor in determining whether the impairment substantially limits a major life activity, and impairments that last only a short period of time may be covered if sufficiently severe.”  In other words, any impairment—no matter how long the duration—could be considered a disability.  Clearly, this issue will be one left for the courts to decide, particularly where the impairment lasts but a few months.

More to Come

We are reviewing the final regulations, and we will follow up with a more detailed analysis in the days ahead. Before the regulations’ effective date, we also will host a webinar to provide employers further guidance on the regulations and the effect they will have on the workplace.  In the mean time, if you have any questions regarding the new regulations, please do not hesitate to contact us.

The folks at the California Public Agency Labor and Employment blog yesterday raised an issue that has popped up from time to time with our own clients: When it comes to “baby bonding” leave, does the Family and Medical Leave Act provide more generous benefits for unmarried parents than it does for married parents?  In short, the answer is Yes.

Under the FMLA, where both husband and wife work for the same employer, they are entitled to a combined 12 weeks of bonding leave per FMLA year.  (See 29 CFR 825.120(a)(3))  So, what if mom and dad both work for the same employer but are not married?  In what can only be described as a loophole in the FMLA, the unmarried parents do not have to split the 12 weeks — each may take up to 12 weeks of bonding leave. 

As the California L&E blog points out, this contrasts with state FMLA laws (like the California Family Rights Act) where bonding leave is limited to a combined 12 weeks for the parents, regardless of whether they are married or not.  Perhaps an intended result, but one employers must be mindful of when administering FMLA leave.

neli.JPGOften enough, HR professionals and attorneys ask me to suggest an FMLA seminar that would help them develop skills to effectively administer the FMLA and/or counsel their clients in this area.  Although several seminars are quite good (not to mention those put on by Bill and me, right?), there are few programs that top those sponsored by the National Employment Law Institute (NELI).  Each spring, NELI hosts a two-day ADA/FMLA seminar (in several U.S. cities) that truly is excellent in all respects.

For the very first time in its history, however, NELI is hosting a workshop dedicated exclusively to the FMLA.  (Can you hear the explosion of cheers in the background? Seriously!)  Starting on June 2 in Chicago, NELI will host a Family and Medical Leave Act Workshop (pdf) that will update attendees on FMLA workplace developments, including significant court cases and the DOL’s latest regulations.  Geared toward attorneys and HR professionals, the seminar will be held in various cities throughout June 2011.

I am delighted to be presenting at NELI’s June 2 FMLA Workshop in Chicago along with Program Chair Ellen McLaughlin (Seyfarth Shaw) and Sanders Lowery (Aon Corporation).  Register for the seminar here. 

brackets.jpgOver the upcoming weeks, when Carl the Custodian is missing from your workplace, you may want to give your local Hooters Restaurant a call.  He just might be there watching the NCAA tournament. 

Hooters has unveiled a marvelous marketing ploy to get customers through their doors during the NCAA tournament — the Company is offering doctor’s notes excusing employees from work on March 17 and 18 for any one of a number of basketball-related “medical” issues.  Of course, the doctor’s note, entitled “Hooters National Hooky Day,” is fake and nothing more than a ploy to rake in a larger share of college basketball fans.  In fact, Hooters’ official Rules (pdf) make it clear that the employee should look for alternative employment if he/she submits the doctor’s note as “an actual excuse to stay out of work.”

But Hooters clearly is onto something.  According to a report by Challenger, Gray & Christmas, Inc., an outplacement firm, employee time spent viewing NCAA tournament games online during the work day will cost employers 8.4 million hours in lost productivity which, when multiplied by “the average hourly earnings … among private-sector workers [makes] the financial impact exceed $192 million.”

Take your best guess as to how FMLA leave will be impacted by the NCAA tourney.  Suffice it to say, however, that HR professionals and leave administrators may have a busy next couple of weeks.  To combat Family and Medical Leave Act abuse during the NCAA tourney (and throughout the year), feel free to browse our previous posts on the topic here and here.

When an employee’s request for medical leave is vague or is unclear, the Family and Medical Leave Act regulations specifically allow (in fact, they require) the employer to question the employee further to determine whether the absence potentially qualifies under the FMLA.  When the employee fails to respond to these reasonable inquiries, the employee may lose the right to FMLA protection. 

Such was the case for Robert Righi.  In a fantastic opinion for employers, a federal appellate court recently upheld the dismissal of Mr. Righi’s FMLA claim because he failed to respond to his supervisor’s telephone calls inquiring about his need for a leave of absence.  Righi v. SMC Corporation of America

The Facts

Righi, a salesman for SMC Corp., was the primary caretaker for his mother, who regularly suffered complications from diabetes.  As a result, Righi often took FMLA leave to care for her.  On the occasion at issue, however, he asked for time off after his mother accidentally overdosed on her medication. 

Continue Reading Employee’s Failure to Return Supervisor’s Phone Calls Dooms FMLA Claim

Every February, the American Bar Association’s Federal Labor Standards Legislation Committee publishes a comprehensive report of significant FMLA decisions handed down by the federal courts in the previous year.  This year’s report is fabulous — it summarizes 2010 FMLA decisions in a user-friendly manner and is a great reference for me throughout the year.

The report can be accessed here (pdf).  I highly recommend it as a valuable FMLA resource for HR professionals and employment attorneys.  Although my FR colleagues and I played a small role in the publication by summarizing a few cases, all the credit goes to attorneys Jim Paul and Bill Bush, who head up the ABA’s FMLA subcommittee.  Enjoy!